Legal nature of water maintenance plans and assessment of their correctness

Public consultations on draft water maintenance plans have recently been conducted. They have caused a huge public uproar and resistance from many quarters. However, the consultations are only one stage of the activities on the water maintenance plans. Accordingly, the comments made will be able to be taken into account or not, and the drafts submitted for consultation will either be amended or implemented as proposed. Therefore, it is worth considering now what their nature is, who will be authorized to evaluate them, how it will be carried out, and who will have the right to challenge them.

Legal nature of water maintenance plans

Water maintenance plans are developed by the Polish Water Authority under Article 327 of the Act of July 20, 2017. Water Law(Journal of Laws 2024, item 1087, as amended). At this point, I will not recall their scope, as it has been discussed previously in the pages of Water Matters. However, it is important to recall that in accordance with the provisions of paragraph 3 of the cited provision Draft water maintenance plans require a strategic environmental impact assessment. The provisions of Section IV, Chapter 1 of the Act of October 3, 2008 on providing information on the environment and its protection, public participation in environmental protection and environmental impact assessments shall apply accordingly.

Examining the environmental impact of the maintenance work planned to be carried out is therefore a key element in the adoption of water maintenance plans. Thus, a flaw in conducting a strategic assessment may affect the correctness of the solutions. In addition, from the point of view of the legal nature of water maintenance plans, it is necessary to recall the provisions of Article 327(4) of the Water Law, according to which the Governor, at the request of the Polish Water Authority , adopts a water maintenance plan by means of a local act. Thus, it is clear from the quoted solution who introduces water maintenance plans and in what form.

In this regard, the solutions arising from the Law of January 23, 2009 on the Governor and Government Administration in the Province (Journal of Laws 2023, item 190, as amended) should be taken into account. This is because it is on its basis that governors issue local laws.

Assessment of the accuracy of water maintenance plans

Thus, it follows from the solutions cited above that it is the Water Authority that develops draft water maintenance plans, but they come into force only after they are adopted by the governor. Therefore, since this is done in the form of a local law act issued by this body, it should be considered that it also has the opportunity to assess the correctness of the proposed solutions. In the event that they are found to violate the law, the governor should point out the mistakes made in the course of the proceedings and inform that the introduction of the plans will be possible once they have been corrected.

Although such possibilities do not derive directly from the letter of the law, but since water maintenance plans are introduced by the governor, he cannot be denied the opportunity to evaluate his own acts. Consequently, possible irregularities can already be signaled at this stage.

However, the evaluation of water maintenance plans does not end there. This is because, according to the provisions of Article 61(1) of the Law on the Voivode and Government Administration in the Voivodship , the Prime Minister shall repeal, by way of supervision, local laws, including ordinances, established by the voivode or organs of non-associated government administration, if they are inconsistent with laws or acts issued for their implementation, and may also repeal them due to inconsistency with the policy of the Council of Ministers or violation of the principles of fairness and economy.

A detailed procedure for carrying out the inspection procedure was introduced by the Prime Minister’s Decree of December 23, 2009 on the procedure for inspecting acts of local law enacted by the governor and bodies of non-segregated government administration (Journal of Laws No. 222, item 1754). It follows that the evaluation of each local law act is carried out ex officio. However, this does not preclude stakeholders from drawing attention to possible irregularities in the adopted water maintenance plans.

Regardless of the ex officio control over the correctness of the introduction of local laws, one should not forget the possibilities provided by Article 63 of the Law on the Governor and Government Administration in the Province. Indeed, according to the provisions of paragraph 1 of this provision , anyone whose legal interest or right has been violated by a provision of a local law, issued by a provincial governor or a body of non-associated government administration, in a matter of public administration, may challenge the provision in an administrative court.

Accordingly, water maintenance plans, as local laws, will be subject to review by administrative courts. For this it will be necessary for the complainant to demonstrate its own legal interest. This concept is not directly defined. However, the jurisprudence indicates that the legal interest is characterized by the fact that it is: personal and concrete and, moreover, it should be current, with its existence determined by the connection of a material legal nature between the applicable norm of substantive law and the legal situation of a specific subject, and which is expressed in the fact that the act of application of this norm may affect the situation of this subject in an administrative case (Judgment of the NSA of 9.08.2023, I OSK 1858/21, LEX No. 3607411).

In the case of local laws, a view has been presented accepting that the introduction of even a temporary ban on entering the forest and a ban on organizing hunting in the area covered by the hunting club’s statutory jurisdiction directly and realistically affects the scope of this entity’s activities (Judgment of the WSA in Gorzow Wielkopolski of 30.06.2020, II SA/Go 60/20, LEX No. 3029299). Therefore, there is no doubt that, in light of the cited views, entities with a legal interest will be, for example, those entitled to fish in waters covered by the provisions of water maintenance plans.

Evaluation criteria

Having established how the evaluation of the correctness of the implementation of water maintenance plans is carried out, it is necessary to consider what criteria should guide the controlling authorities in this regard. As in any case, it should be carried out in two stages. At the first stage, it is necessary to verify the correctness of the proceedings in the course of which specific water maintenance plans were adopted. Any errors of a procedural nature will disqualify the adopted local law. In the case of water maintenance plans, the correctness of the strategic environmental impact assessment will be essential. Therefore, the assessment of the correctness of the water maintenance plans should begin with verification of the way in which the impact of the planned activities on the waters was studied.

In addition to the formal evaluation of the solutions adopted, the substantive solutions proposed in specific plans should also be evaluated. In this case, they should be evaluated through the prism of the provisions of Article 9 of the Water Law introducing the principle of water management. In accordance with the provisions of paragraph. 1 of this provision Water management shall be carried out in accordance with the principle of rational and comprehensive treatment of surface and groundwater resources, taking into account their quantity and quality. On the other hand, according to paragraph. 4 of the cited provision Management of waters shall be carried out in accordance with the public interest, not allowing avoidable deterioration of the ecological functions of waters and deterioration of terrestrial ecosystems that depend on waters. Therefore, if the measures proposed in the water maintenance plans prevent the achievement of these goals, they are very likely to be flawed.

Conclusions

Therefore, summarizing the above considerations, it should be said that the provisions of water maintenance plans cannot be arbitrary in nature. Administrative bodies must be guided in this regard by criteria derived from the law, and the effects of their activities may be subject to control by both administrative bodies and administrative courts. Therefore, proposing certain solutions is not the same as saying that they will come into force in this form.